DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s Amendments, filed 10/10/2025, to claims 1, 8-9, 18, 20 acknowledged by Examiner. Additionally, applicant cancelled claims 3, 10, and 16.
Claims 1-2, 4-9, 11-15, 17-20 are now pending.
Previous objection to the specification and drawings is withdrawn.
Previous 112b rejections of claims 1, 8, 9, 20 withdrawn as being resolved with amendments.
Previous 112b rejection of claims 5 and 18 regarding the antecedent basis of “the posterior rigid panels” withdrawn, but a new 112b regarding the language herein is provided below.
Previous 112b rejection of claim 19 withdrawn (Examiner agrees not antecedent basis issue).
Response to Arguments
Applicant's arguments filed 10/10/2025 have been fully considered but they are not persuasive.
In regards to Applicant’s argument that the art does not disclose an internal pocket at the anterior mid-portion of the belt having a first opening (pages 2-3), Examiner disagrees. Firstly, in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., anterior mid-portion) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Claim 1 recites “an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt” claim uses front not anterior. Secondly, the Annotated Fig. 5B of Joseph provides for “an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt” as the pocket 330 in Fig. 5B is on the inner side (as noted in the brief description of drawings of Joseph, wherein an inner side may termed a front side for being against a wearer’s body, and is thus not posterior) and the pocket first opening is noted in Annotated Fig. 5B. Applicant appears to have misread the written rejection by referring to the pocket 358 of Joseph as the front internal pocket when pocket 358 is added on as further back side/posterior pocket in the written rejection.
In regards to Applicant’s arguments that the compression straps are not “detachably attached” (page 3), Examiner disagrees. Claim 1 recites “plurality of compression straps are detachably attached in the back side of the size adjustable flexible abdominal belt” and as noted in the copied previous rejection below, Sebastian provides two straps 5a and 5b (thus being a plurality) in the back of the device and further detachably attach in the back side of device via hook-and-loop 8 (Col. 4, lines 39-47). The claim language as-is is completely met by Sebastian.
In regards to Applicant’s arguments that the rejection does not provide for the anterior rigid panels and their relationship to the pockets (page 3), Examiner disagrees. See in the rejection below wherein the pockets taught in by Joseph are the internal pockets and internal sleeve pockets of which anterior rigid panels are placed in, wherein panels being placed into pockets are implicitly slidably attached therein based on the implicit capabilities of a pocket.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Regarding claim 1 (page 4), Applicant asserts that Sebastian only has posterior pockets (page 4). This is clearly false as Fig 5B of Sebastian provides an inner view of the brace thus pocket 330 being a front pocket (see brief description of drawings of Sebastian). Applicant further asserts that the references do not provide the taught features but as provided in the mapping below all the limitations as written for claim 1 are taught or disclosed by the references.
Regarding claim 9 (pages 4-5), Applicant asserts the claim requires “bilateral internal sleeve pockets” and “bilateral external sleeve pockets” but the claim language does not contain the usage of the verb “bilateral” thus it is not clear if Applicant is duly arguing the claims at hand. Applicant keeps referring to Joseph’s pocket 330 as being posterior when it isn’t as noted above already. Examiner has also already provided arguments against the straps, wherein Joseph clearly provides two straps 5a/5b which fits with the claim language as recited.
Regarding claim 15 (page 5-6), Applicant asserts that Grim does not provide a teaching for the straps. Examiner disagrees as Grim recites “The air bladder assembly 204 may be formed integrally with the straps 219 and 221 to provide an assembly which is of high strength, and also has the desirable attributes of inflatability and considerable resilience. One material which meets these needs is a nylon fabric, lightly but continuously coated with urethane at about 3 or 4 ounces of urethane per square yard of fabric material. However, greater or lesser amounts of various plastics may be used and any of a number of open or closed weave fabrics may be employed”, wherein the straps are integral with the bladder assembly thus share the same material therein for construction, wherein these straps do not have to be exact in function to the straps of Joseph or Sebastian but merely analogous straps in the same field of endeavor with some advantage provided therein (which is provided in the rejection below).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning (pages 6-7), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The obviousness modifications have been provided with their proper rationale as noted in the rejections below.
In response to applicant's argument that the references fail to show certain features of the invention (page 7), it is noted that the features upon which applicant relies (i.e., on page 7 Applicant is relying on the figures, specification, and other unclaimed aspects of the invention for the urethane straps, the claims are rejected as written) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991). (page 7-8, Applicant asserts the claims are a coordinated feature set, the claims as written though are found obvious under the references utilized below).
In response to applicant's argument that the principle of operation has changed especially in regards (page 8), the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In the rejections below, the straps have not been structurally modified in any way that would causes conflicts with operation. Nor is Examiner certain how the pocket modifications would cause issues as Applicant appears to be merely reciting patentability. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
The Declaration under 37 CFR 1.132 filed 10/10/2025 is insufficient to overcome the rejection of claims 1-2, 4-9, 11-15, 17-20 based upon Sebastian (US 5122111 A) in view of Joseph (US 9655761 B2) and Lawrence (CA 2962221 A1) and Grim (WO 9009155 A1) under 35 U.S.C. 103 as set forth in the last Office action because: (Note there is reference to numerous exhibits; however, they do not appear to be uploaded or provided therein)
The declaration appears to be a merely providing their total gross revenue as evidence of non-obviousness with mere recitations that their combination of features provides an improved invention, wherein the declaration provides the product Niner Premium Pregnancy Support, Model No. NSB and Lexa Premium Postpartum Support Model No LPR as practicing the claimed invention. However, the evidence is only asserted for a single aspect of the claim 1 independent claim in regards to the straps and other dependent claim aspects, thus while the products might share features the claims as a whole are not represented nor is it clear if the product has actually sold well because of these indicated claimed features or some other reason. The claimed invention is for more than just the straps especially in claim 1. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims. In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (evidence showing commercial success of thermoplastic foam "cups" used in vending machines was not commensurate in scope with claims directed to thermoplastic foam "containers" broadly). In order to be commensurate in scope with the claims, the commercial success must be due to claimed features, and not due to unclaimed features. Joy Technologies Inc. v. Manbeck, 751 F. Supp. 225, 229, 17 USPQ2d 1257, 1260 (D.D.C. 1990), aff’d, 959 F.2d 226, 228, 22 USPQ2d 1153, 1156 (Fed. Cir. 1992) (Features responsible for commercial success were recited only in allowed dependent claims, and therefore the evidence of commercial success was not commensurate in scope with the broad claims at issue.) The nexus of claims herein is insufficient to prove if the sales of the invention are truly according to the claims broadly provided. An affidavit or declaration attributing commercial success to a product or process "constructed according to the disclosure and claims of [the] patent application" or other equivalent language does not establish a nexus between the claimed invention and the commercial success because there is no evidence that the product or process which has been sold corresponds to the claimed invention, or that whatever commercial success may have occurred is attributable to the product or process defined by the claims. Ex parte Standish, 10 USPQ2d 1454, 1458 (Bd. Pat. App. & Inter. 1988).
Further, Gross sales figures do not show commercial success absent evidence as to market share, Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed. Cir. 1985) (overruled on other grounds by Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 50 USPQ2d 1672 (Fed. Cir. 1999)), or as to the time period during which the product was sold, or as to what sales would normally be expected in the market, Ex parte Standish, 10 USPQ2d 1454 (Bd. Pat. App. & Inter. 1988).
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Examiner’s Notes
All references relied up on and not cited in the current Form 892 may be found in previous 892's or IDS'.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5 and 18 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 5 and 18, the amended claims 5 and 18 recite “wherein the anterior rigid panels and posterior rigid panels include rectangular structures with a plurality of holes”, wherein as amended this is no longer an antecedent basis issue; however, as now written and amended the claim is confusing. The claim is providing further limitation for the anterior rigid panels wherein the independent claims from which 5 and 18 depend provide the anterior rigid panels to be “slidably attached in the internal pocket and the one or more internal sleeve pockets”, but now there is suddenly newly introduced also posterior rigid panels. One of ordinary skill who reads this claims has no idea what these “posterior rigid panels” are when written so suddenly in the claim. We know they have similar structure to the anterior rigid panels, but are they also in the internal pockets or are they elsewhere in the device, we simply don’t know as claimed. Claims 5 and 18 are found indefinite for failing to distinctly claiming the subject matter of the invention as one has no idea to what these “posterior rigid panels” pertain in the invention as claimed and amended (not a new ground of rejection as they are regarding an amended language of the claims herein).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2, 5-9 and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Sebastian (US 5122111 A) in view of Joseph (US 9655761 B2).
Regarding Claim 1, Sebastian discloses a device comprising: a size adjustable flexible abdominal belt (Col. 2, lines 11-35; therapeutic appliance) including: a back panel (Fig. 2; central region I), a right side contouring panel attached to the right side of the back panel (Fig. 2; stiffening members 4e and 4f), a left side contouring panel attached to the left side of the back panel (Fig. 2; stiffening members 4c and 4d), a right front end panel attached to one end of the right side contouring panel (See annotated Fig. 3 below; opposite ends 2), and a left front end panel attached to one end of the left side contouring panel (See annotated Fig. 3 below; opposite ends 2); a connector for connecting a first end and a second end of the size adjustable flexible abdominal belt (Fig. 1-3; fastening member 7); an external pocket disposed in a mid-portion of a back side of the size adjustable flexible abdominal belt (Fig. 1- 2, Col. 3, lines 36-39; pouches 10), the external pocket having a second opening for accessing the external pocket for a panel or pack (Col. 3, ¶ 6; pouches 10 may take the form of a sleeve to accommodate therapeutic pad 11); a panel or pack a plurality of compression straps (Fig. 1; elastic member 5) having a fastener at one or more ends of the compression straps (Fig. 1; fastener members 8), the plurality of compression straps are detachably attached in the back side of the size adjustable flexible abdominal belt (Col. 4, lines 39-47); and a plurality of anterior rigid panels (Col. 4, lines 3-13; therapeutic pad 11).
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Sebastian fails to disclose an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt, the internal pocket having a first opening for accessing the internal pocket for a panel or pack; one or more internal sleeve pockets having a third opening, disposed in the back side of the right front end panel for a panel or pack a plurality of compression straps, and a plurality of anterior rigid panels slidably attached in the internal pocket and the one or more internal sleeve pockets.
However, Joseph teaches an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt (Fig. 5B and 5D, Col. 9, lines 21-23; back panels 302 and 304, pocket 330), the internal pocket having a first opening for accessing the internal pocket for a panel or pack (See Annotated Fig. 5B below, Col. 9, lines 21-23; back panels 302 and 304, pocket 330); one or more internal sleeve pockets having a third opening, disposed in the back side of the right front end panel for a panel or pack a plurality of compression straps (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346), and a plurality of anterior rigid panels slidably attached in the internal pocket and the one or more internal sleeve pockets (See Annotated Fig. 4C below, Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359).
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The proposed combination is to add pocket 330 of Joseph to the internal midportion of a front side of the panel of Sebastian (See Annotated Fig 3 below) and pocket 358 of Joseph to the back side of the right front end panel of Sebastian (See annotated Fig. 2 below).
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 330 and pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 330 (Fig. 5B and 5D, Col. 9, lines 22-23; removable support 332) and pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allow for the retention of a removable support and as such permits customizability of the support prior to insertion, allowing the wearer to better adjust the brace's fit and level of support depending on their needs.
Regarding Claim 2, Sebastian in view of Joseph discloses the device as claimed in claim 1. Wherein Sebastian discloses the plurality of compression straps include multiple elastic straps attached together (Fig. 1; upper elastic band 5a and lower elastic band 5b) to a strap support (Fig. 1; stiffening members 4a and 4b) to form an elastic diamond shape (Fig. 1; note diamond shape of elastic member 5).
Regarding Claim 5, Sebastian in view of Joseph discloses the device as claimed in claim 1. Wherein Sebastian discloses the anterior rigid panels and posterior rigid panels include rectangular anatomical structures with a plurality of holes and/or perforations (Col. 4, lines 3-13; therapeutic pad 11, wherein the therapeutic pad 11 may be a foam pad, and as such it inherently possesses a plurality of holes or perforations which are an intrinsic feature of the foam's structure resulting from the manufacturing process or material properties).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to design the anterior and posterior rigid panels to include rectangular anatomical structures because the claimed shape is a matter of choice within the skill of the art. According to MPEP 2144, changes in shape, size, or sequence of adding ingredients is not an inventive feature. Therefore, the claimed rectangular anatomical structure of the anterior and posterior rigid panels is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the shape of the panels is critical as In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding Claim 6, Sebastian discloses one or more therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the one or more of therapeutic gel packs slidably inserted into the internal pocket.
However, Joseph teaches an internal pocket (See Annotated Fig. 5B below, Col. 9, lines 21-23; back panels 302 and 304, pocket 330) wherein a pocket 330 may retain a removable support 332 (Fig. 5D, Col. 9, lines 22-23).
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The proposed combination is to add pocket 330 of Joseph to the internal midportion of a front side of the panel of Sebastian (See Annotated Fig 3 below), such that the therapeutic pad 11 of Sebastian may be slidably inserted.
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 330 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 330 (Fig. 5B and 5D, Col. 9, lines 22-23; removable support 332) allows for the retention of a removable support, as such this permits the wearer to insert one or more therapeutic gel packs based on their needs while still providing immobilization.
Regarding Claim 7, Sebastian discloses the device as claimed in claim 1. Wherein Sebastian discloses the device further includes one or more of therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the therapeutic gel packs slidably inserted to the one or more internal sleeve pockets.
However, Joseph teaches one or more therapeutic gel packs slidably inserted to the one or more internal sleeve pockets (See Annotated Fig. 4C below, Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359).
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The proposed combination is to add pocket 358 of Joseph to the back side of the right front end panel of Sebastian (See annotated Fig. 2 below). such that the therapeutic pad 11 of Sebastian may be slidably inserted to the one or more internal sleeve pockets.
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Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allows for the retention of a removable support. The incorporation of therapeutic gel packs being slidably inserted to one or more internal sleeve pockets enhances the accessibility and flexibility of the orthosis support by allowing for easy replacement of the therapeutic gel packs, as well as allowing the user to better adjust the brace's fit and level of support based on their needs.
Regarding Claim 8, Sebastian in view of Joseph discloses the device as claimed in claim 1. Wherein Sebastian discloses one or more of therapeutic gel packs slidably attached to the one or more external pockets (Col. 3, ¶ 6; pouches 10 may take the form of a sleeve to accommodate therapeutic pad 11).
Regarding Claim 9, Sebastian discloses a device comprising: a size adjustable flexible abdominal belt (Col. 2, lines 11-35; therapeutic appliance) including: a back panel (Fig. 2; central region I), a right side contouring panel attached to the right side of the back panel (Fig. 2; stiffening members 4e and 4f), a left side contouring panel attached to the left side of the back panel (Fig. 2; stiffening members 4c and 4d), a right front end panel attached to one end of the right side contouring panel (See annotated Fig. 3 below; opposite ends 2), and a left front end panel attached to one end of the left side contouring panel (See annotated Fig. 3 below; opposite ends 2); a connector for connecting a first end and a second end of the size adjustable flexible abdominal belt (Fig. 1; fastening member 7); an external pocket disposed in a mid-portion of a back side of the size adjustable flexible abdominal belt (Fig. 1- 2, Col. 3, lines 36-39; pouches 10), the external pocket having a second opening for accessing the external pocket (Col. 3, ¶ 6; pouches 10 may take the form of a sleeve to accommodate therapeutic pad 11); a plurality of compression straps (Fig. 1; elastic member 5) having a fastener at one or more ends of the compression straps (Fig. 1; fastener members 8), the plurality of compression straps are detachably attached in the back side of the size adjustable flexible abdominal belt (Col. 4, lines 39-47), wherein the plurality of compression straps include multiple elastic straps attached together (Fig. 1; upper elastic band 5a and lower elastic band 5b) to a strap support (Fig. 1; stiffening members 4a and 4b) to a strap support to form an elastic diamond shape (Fig. 1; note diamond shape of elastic member 5); one or more therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
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Sebastian fails to disclose an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt, the internal pocket having a first opening for accessing the internal pocket; one or more internal sleeve pockets having a third opening, disposed in the front side of the right front end panel and the left front end panel; one or more external sleeve pockets having a fourth opening, disposed in the back side of the right front end panel and the left front end panel; a plurality of anterior rigid panels detachably attached in the one or more internal sleeve pockets; and one or more therapeutic gel packs detachably attached to the internal pocket.
However, Joseph teaches an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt (Fig. 5B and 5D, Col. 9, lines 21-23; back panels 302 and 304, pocket 330), the internal pocket having a first opening for accessing the internal pocket (See Annotated Fig. 5B below, Col. 9, lines 21-23; back panels 302 and 304, pocket 330); one or more internal sleeve pockets having a third opening, disposed in the front side of the right front end panel and the left front end panel (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346), one or more external sleeve pockets having a fourth opening, disposed in the back side of the right front end panel and the left front end panel (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on outer surface 344); a plurality of anterior rigid panels detachably attached in the one or more internal sleeve pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359); and one or more therapeutic gel packs detachably attached to the internal pocket (See Annotated Fig. 5B below, Fig. 5D, Col. 9, lines 21-23; pocket 330, removable support 332).
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The proposed combination is to add pocket 330 of Joseph to the internal midportion of a front side of the panel of Sebastian (See Annotated Fig 3 below), pocket 358 of Joseph to the front side of the right front end panel and the left front end panel of Sebastian (See annotated Fig. 3 below), and pocket 358 of Joseph to the back side of the right front end panel and the left front end panel of Sebastian (See Annotated Fig. 2 below).
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 330 and pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 330 (Fig. 5B and 5D, Col. 9, lines 22-23; removable support 332) and pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allow for the retention of a removable support and as such provides better immobilization, accessibility and customizability for inserting and removing therapeutic pads and rigid panels, allowing the user to better adjust the brace's fit and level of support depending on their needs.
Regarding Claim 12, Sebastian in view of Joseph discloses the device as claimed in claim 9. Wherein Sebastian discloses the anterior rigid panels and the posterior rigid panels include rectangular structures with a plurality of holes (Col. 4, lines 3-13; therapeutic pad 11, wherein the therapeutic pad 11 may be a foam pad, and as such it inherently possesses a plurality of holes or perforations which are an intrinsic feature of the foam's structure resulting from the manufacturing process or material properties).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to design the anterior and posterior rigid panels to include rectangular anatomical structures because the claimed shape is a matter of choice within the skill of the art. According to MPEP 2144, changes in shape, size, or sequence of adding ingredients is not an inventive feature. Therefore, the claimed rectangular anatomical structure of the anterior and posterior rigid panels is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the shape of the panels is critical as In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding Claim 13, Sebastian discloses the device as claimed in claim 9. Wherein Sebastian discloses the device further includes one or more of therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the one or more therapeutic gel packs detachably attached to the one or more internal sleeve pockets.
However, Joseph teaches the one or more therapeutic gel packs detachably attached to the one or more internal sleeve pockets (See Annotated Fig. 4C below, Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359).
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The proposed combination is to add pocket 358 of Joseph to the front side of the right front end panel and the left front end panel of Sebastian (See Annotated Fig. 3 below), such that the therapeutic pad 11 of Sebastian may be detachably attached.
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Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allows for the retention of a removable support. The incorporation of therapeutic gel packs being slidably inserted to one or more internal sleeve pockets enhances the accessibility and flexibility of the orthosis support by allowing for easy replacement of the therapeutic gel packs, as well as allowing the user to better adjust the brace's fit and level of support based on their needs
Regarding Claim 14, Sebastian discloses the device as claimed in claim 13. Wherein Sebastian discloses the device further includes one or more of therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the one or more of therapeutic gel packs detachably attached to the one or more external sleeve pockets.
However, Joseph teaches the one or more of therapeutic gel packs detachably attached to the one or more external sleeve pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on outer surface 344, configured to receive anterior insert 359).
The proposed combination is to add pocket 358 of Joseph to the back side of the right front end panel and the left front end panel of Sebastian (See Annotated Fig. 2 below)
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Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the back panel (Fig. 1; central region I) of Sebastian with one or more external sleeve pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on outer surface 344) of Joseph such that the one or more therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11) of Sebastian may be detachably attached to the one or more external sleeve pockets (Fig. 5B and 5D, Col. 9, lines 21-23; back panels 302 and 304, wherein support 332 may be removable from pocket 330). A skilled artisan would have been motivated to do so since the addition of one or more therapeutic gel packs being detachably attached to one or more external sleeve pockets enhances accessibility and flexibility by allowing for easy replacement of the therapeutic gel packs based on the user's needs, as well as allowing the user to better adjust the brace's fit and level of support.
Claims 4 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Sebastian (US 5122111 A) in view of Joseph (US 9655761 B2) as applied to Claims 1 and 9 above, and further in view of Lawrence (CA 2962221 A1).
Regarding Claims 4 and 11, Sebastian discloses a plurality of compression straps (Fig. 1; elastic member 5).
Sebastian fails to explicitly disclose the device as claimed in claim 1, wherein the plurality of compression straps include memory retention medical grade elastic straps.
However, Lawrence teaches the device as claimed in Claims 1 and 9, wherein the plurality of compression straps include memory retention medical grade elastic straps (pg. 11, ¶ 59).
Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the compression straps (Fig. 1; elastic member 5) of Sebastian to include memory retention medical grade elastic (pg. 11, ¶ 59) of Lawrence. A skilled artisan would have been motivated to do so to provide different regions of the strap with different properties or functionalities and properties, such as comfortable fit, support, resistance to wear and tear, mould, mildew and bacteria, and hypo-allergenic properties, in addition to the ability to adjust the degree of pressure applied to or felt by a user on a body part (pg. 11-12, ¶ 59) as deemed in Lawrence.
Claims 15 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sebastian (US 5122111 A) in view of Joseph (US 9655761 B2) and in further view of Grim (WO 9009155 A1).
Regarding Claim 15, Sebastian discloses a device comprising: a size adjustable flexible abdominal belt (Col. 2, lines 11-35; therapeutic appliance) including: a back panel (Fig. 2; central region I), a right side contouring panel attached to the right side of the back panel (Fig. 2; stiffening members 4e and 4f), a left side contouring panel attached to the left side of the back panel (Fig. 2; stiffening members 4c and 4d), a right front end panel attached to one end of the right side contouring panel (See annotated Fig. 3 below; opposite ends 2), and a left front end panel attached to one end of the left side contouring panel (See annotated Fig. 3 below; opposite ends 2); a connector for connecting a first end and a second end of the size adjustable flexible abdominal belt (Fig. 1; fastening member 7); an external pocket disposed in a mid-portion of a back side of the size adjustable flexible abdominal belt (Fig. 1- 2, Col. 3, lines 36-39; pouches 10), the external pocket having a second opening for accessing the external pocket (Col. 3, ¶ 6; pouches 10 may take the form of a sleeve to accommodate therapeutic pad 11); a plurality of compression straps (Fig. 1; elastic member 5) having a fastener at one or more ends of the compression straps (Fig. 1; fastener members 8), the plurality of compression straps are detachably attached in the back side of the size adjustable flexible abdominal belt (Col. 4, lines 39-47).
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Sebastian fails to disclose an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt, the internal pocket having a first opening for accessing the internal pocket; one or more internal sleeve pockets having a third opening, disposed in the front side of the left front end panel; the detachable compression straps are made from urethane; and a plurality of anterior rigid panels detachably attached in the internal pocket and the one or more internal sleeve pockets.
However, Joseph teaches an internal pocket disposed in a mid-portion of a front side of the size adjustable flexible abdominal belt (Fig. 5B and 5D, Col. 9, lines 21-23; back panels 302 and 304, pocket 330), the internal pocket having a first opening for accessing the internal pocket (See Annotated Fig. 5B below, Col. 9, lines 21-23; back panels 302 and 304, pocket 330); one or more internal sleeve pockets having a third opening, disposed in the front side of the left front end panel (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346); and a plurality of anterior rigid panels detachably attached in the internal pocket (Fig. 5B and 5D, Col. 9, lines 21-23; back panels 302 and 304, pocket 330, removable support 332) and the one or more internal sleeve pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359).
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The proposed combination is to add pocket 330 of Joseph to the internal midportion of a front side of the panel of Sebastian (See Annotated Fig 3 below), pocket 358 of Joseph to the front side of the left front end panel of Sebastian (See annotated Fig. 3 below).
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 330 and pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 330 (Fig. 5B and 5D, Col. 9, lines 22-23; removable support 332) and pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allow for the retention of a removable support and as such provides better immobilization, accessibility and customizability for inserting and removing therapeutic pads and rigid panels, allowing the user to better adjust the brace's fit and level of support depending on their needs.
Joseph fails to teach the detachable compression straps are made from urethane.
Grim teaches the detachable compression straps are made from urethane (Col 7, lines 38-45). Grim discusses straps 219 and 221 used for an air bladder assembly as part of a back brace 10, wherein a coating of urethane on the straps provides desirable attributes such as high strength and resilience.
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the compression straps of Sebastian with the urethane of Grime. A skilled artisan would have been motivated to do so since urethane is a known material within the art and the use of urethane for medical and therapeutic applications would be beneficial as a compression strap due to its ability to seal against water and wear, while still providing breathability to allow moisture to escape.
Regarding Claim 18, Sebastian in view of Joseph and in further view of Grim discloses the device as claimed in claim 15. Wherein Sebastian discloses the anterior rigid panels and the posterior rigid panels include rectangular structures with a plurality of holes (Col. 4, lines 3-13; therapeutic pad 11, wherein the therapeutic pad 11 may be a foam pad, and as such it inherently possesses a plurality of holes or perforations which are an intrinsic feature of the foam's structure resulting from the manufacturing process or material properties).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to design the anterior and posterior rigid panels to include rectangular anatomical structures because the claimed shape is a matter of choice within the skill of the art. According to MPEP 2144, changes in shape, size, or sequence of adding ingredients is not an inventive feature. Therefore, the claimed rectangular anatomical structure of the anterior and posterior rigid panels is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the shape of the panels is critical as In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding Claim 19, Sebastian discloses the device as claimed in claim 15. Wherein Sebastian discloses the device further includes one or more of therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the one or more of therapeutic gel packs detachably attached to the one or more internal sleeve pockets.
However, Joseph teaches one or more of therapeutic gel packs detachably attached to the one or more internal sleeve pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on inner surface 346, configured to receive anterior insert 359).
The proposed combination is to add pocket 358 of Joseph to the front side of the left front end panel of Sebastian (See annotated Fig. 3 below).
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Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allows for the retention of a removable support. The incorporation of therapeutic gel packs being detachably attached to the one or more internal sleeve pockets enhances the accessibility and flexibility of the orthosis support by allowing for easy replacement of the therapeutic gel packs, as well as allowing the user to better adjust the brace's fit and level of support based on their needs.
Regarding Claim 20, Sebastian discloses the device as claimed in claim 19. Wherein Sebastian discloses the device includes one or more of therapeutic gel packs (Col. 4, lines 3-13; therapeutic pad 11).
Sebastian fails to disclose the one or more of therapeutic gel packs detachably attached to the one or more external pockets.
However, Joseph teaches the one or more of therapeutic gel packs detachably attached to the one or more external pockets (Fig. 4A-4C, Col. 10, lines 4-7; wherein front panels 306 and 308 may be provided with a pocket 358 on outer surface 344, configured to receive anterior insert 359).
Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add pocket 358 of Joseph to the back panel of Sebastian as taught by Joseph. A skilled artisan would have been motivated to do so because Joseph teaches that pocket 358 (Fig. 4C, Col. 10, lines 4-7; anterior insert 359) allows for the retention of a removable support. The incorporation of therapeutic gel packs being detachably attached to the one or more external pockets enhances the accessibility and flexibility of the orthosis support by allowing for easy replacement of the therapeutic gel packs, as well as allowing the user to better adjust the brace's fit and level of support based on their needs.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Sebastian (US 5122111 A) in view of Joseph (US 9655761 B2) and Grim (WO 9009155 A1) as applied to claim 15 above, and further in view of Lawrence (CA 2962221 A1).
Regarding Claim 17, Sebastian discloses a plurality of compression straps (Fig. 1; elastic member 5). Sebastian fails to explicitly disclose the device as claimed in claim 15, wherein the plurality of compression straps include memory retention medical grade elastic straps.
However, Lawrence teaches the device as claimed in claim 15, wherein the plurality of compression straps include memory retention medical grade elastic straps (pg. 11, ¶ 59).
Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the compression straps (Fig. 1; elastic member 5) of Sebastian to include memory retention medical grade elastic (pg. 11, ¶ 59) of Lawrence. A skilled artisan would have been motivated to do so to provide different regions of the strap with different properties or functionalities and properties, such as comfortable fit, support, resistance to wear and tear, mould, mildew and bacteria, and hypo-allergenic properties, in addition to the ability to adjust the degree of pressure applied to or felt by a user on a body part (pg. 11-12, ¶ 59) as deemed in Lawrence.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN S ALBERS whose telephone number is (571)272-0139. The examiner can normally be reached Monday-Friday 7:30 am to 5:00 pm.
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/KEVIN S ALBERS/Patent Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786